Transparency and Truth during Custodial Interrogations and Beyond

Klein, Susan R., Boston University Law Review

I. Introduction

My goal in this Symposium is not to disrespect the Warren Court Revolution. The Warren Court's constitutionalization of the rules of criminal procedure during the 1960s was quite clearly necessary at the time, in large part to terminate the miserably unjust treatment of African Americans living in the south,1 and in part to foster the values of privacy, autonomy, fairness, and protection of the innocent enshrined in the Bill of Rights but ignored by many state criminal justice actors. The three best-known criminal procedure decisions by the Warren Court were vital to the health of the criminal justice system when they were rendered. The exclusionary remedy incorporated in Mapp v. Ohio2 was critical in persuading peace officers to learn about and then protect Fourth Amendment values;3 the Miranda v. Arizona4 warnings seemed the only way to limit abusive police behavior at the stationhouse while still encouraging voluntary confessions;5 and the Sixth Amendment right to counsel offered in Gideon v. Wainwright6 was essential to separating guilty from innocent defendants.7 Unfortunately, and perhaps somewhat ironically, doctrine concerning these Amendments has been subsequently contorted and subjected to a constant stream of exceptions by the Burger, Rehnquist, and Roberts Courts. These once laudable decisions now contribute to-and in fact embody-the unnecessarily adversarial and deceptive nature of many encounters between citizens and police officers.

A few examples should suffice to explain my position. Let's start with the Fourth Amendment. "Consensual" seizures and searches are a bit of a joke when you try to explain them to a nonattorney-why would anyone "voluntarily" consent to stick around and have strangers rummaging through their things, especially when the person knows she possesses illegal items? The post-Warren Courts allowed these "consent searches" and called them voluntary interactions rather than "seizures" because they generate useful and accurate evidence, especially for fighting the war on drugs,8 without triggering the exclusionary rule.9 As of the Utah v. Strieff decision in 2016, peace officers can unlawfully detain any person without a warrant, probable cause, reasonable suspicion, or really any articulable rationale at all, in clear violation of the Court's interpretation of the Fourth Amendment, long enough to determine if such person is one of the eight million Americans with an outstanding misdemeanor warrant.10 If so, the officer can arrest and search said person, and any evidence found on her is admissible.11 By assuming a Fourth Amendment violation and admitting the evidence anyway because it was "attenuated" from the violation, the majority threw the officer under the bus. The Court informs citizens that they have a Fourth Amendment right not to be detained absent at least reasonable suspicion, and places the blame for violating that right squarely on the shoulders of the officers. The Strieff holding is one of a long list of examples of the unintended consequences of the exclusionary rule: The Court considers the price of exclusion too high, so while ostensibly retaining citizens' Fourth Amendment rights, it refuses to enforce those rights. Officers learn the exceptions to the exclusionary rule, and then learn to ignore the unenforceable Fourth Amendment doctrine. Citizens are left with the impression that either they have no Fourth Amendment right not to be hassled by cops, or that the cop violated their right. Either way, the cop is the bad guy.

Post-Warren Courts employed similar tactics in the Fifth Amendment context. The standard for determining when a citizen is under arrest, so as to trigger the Miranda warnings necessary to protect the privilege against self-incrimination, is whether a defendant was "deprived of his freedom of action in any significant way."12 However, the Court has since construed this standard in a preposterous fashion-the average person does not generally feel free to leave when questioned by an armed officer, be it at a stationhouse, at her own home, or in a vehicle pulled over for a traffic infraction. …

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